The state of new hampshire

Re: Case No. 09-01, Appeal of Michael & Carol Martin

On February 12, 2009, the Town of Deering (“Deering”) Zoning Board of Adjustment
(“ZBA”) heard Case No. 09-01, the appeal of Michael and Carol Martin
(“Applicants”), requesting a variance from Sections 4.5.8, 4.5.9, and 4.5.10 of the
Deering Zoning Ordinance (“DZO”), to install a leach field on the property located at 8 Zoski Road, Tax Map 229, Lot 6 (“Property”). For the reasons set forth below, by a vote of 3-2, a majority of the members of the ZBA determined that under Fisher v. City of Dover, 120 N.H. 187 (1980), as cited below, the ZBA was precluded from
acting on the appeal, which is therefore DENIED.
When a material change of circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition. If it were otherwise, there would be no finality to proceedings before the board of adjustment, the integrity of the zoning plan would be threatened, and an undue burden would be placed on property owners The burden of proving a material change of circumstances before the board of adjustment lies on the party seeking the variance . . . . The determination of whether changed circumstances exist is a question of fact which necessitates ‘a consideration of the conditions and circumstances which existed at the time of the prior denial.’ (Citation omitted). Resolution of this issue must be made, in the first instance,
Fisher v. City of Dover, 120 N.H. 187, 190-91 (1980).
It was the opinion of the ZBA that the present appeal does not materially differ in
nature or degree from Case No. 05-04 in which the Applicants previously sought a
variance to construct a leach field on the Property, which request was denied by the ZBA on June 29, 2005. It is further the opinion of the ZBA that there has been no material change in circumstances affecting the merits of the Application which would permit the ZBA to act on the appeal. In support of its decision, the ZBA found that there was no evidence presented by the Applicants that the effluent discharged from the leaching system differed in any way from the leaching system previously proposed. Based on the evidence that was presented, the only difference between the leaching systems was a decrease of 10 feet in the setback encroachment on the north easterly side of the system, from 30 feet to 40 feet, whereas 100 feet is required. The ZBA further found that in light of its earlier decision, the Applicants’ efforts to ascertain whether there were other reasonably feasible alternatives which would permit installation of a leaching system other than with a variance (e.g. easement on abutting property) were perfunctory at best. The enclosed constitutes the final written decision of the ZBA in accordance with RSA § 676:3. However, the decision of the ZBA should not be considered in isolation without reference to its deliberations, which are herein incorporated by reference, as are the public meeting minutes recorded during this hearing. Dated: February 17, 2009
Notice of Appellate Rights: Within 30 days after any order or decision of
the Zoning Board of Adjustment, any party to the action or proceedings, or
any person directly affected thereby may apply for a rehearing, specifying

in the motion for rehearing the ground(s) therefore. No appeal from any
order or decision of the Zoning Board of Adjustment shall be taken unless

the appellant shall have made application for rehearing, and no ground
not set forth in the application shall be urged, relied on, or given any
consideration by a court unless the court for good cause shown shall allow

the appellant to specify additional grounds.
The Zoning Board of Adjustment may grant a rehearing if in its opinion
good reason therefore is stated in the motion. The 30 day time period shall

be counted in calendar days beginning with the date following the date
upon which the board voted to approve or disapprove the application in
accordance with RSA § 21:35; provided however, that if the moving party

shows that the minutes of the meeting at which such vote was taken,
including the written decision, were not filed within 144 hours of the vote

pursuant to RSA 676:3, II, the person applying for the rehearing shall have
the right to amend the motion for rehearing, including the grounds

therefore, within 30 days after the date on which the written decision was
actually filed.


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